Guide to the use of this commentary
The Secretariat Commentary is on the 1978 Draft of the CISG, not the Official Text. The Secretariat Commentary on article 3 of the 1978 Draft is quoted below with the article references contained in this commentary related to the Official Text as follows: article 3 [draft counterpart of CISG article 3].
To the extent it is relevant to the Official Text, the
Secretariat Commentary on the 1978 Draft is perhaps the
most authoritative source one can cite. It is the
closest counterpart to an Official Commentary on the
CISG. A match-up of this article of the 1978 Draft with
the version adopted for the Official Text is necessary to
document the relevancy of the Secretariat Commentary on
this article. See the match-up for this article for a
validation of citations to this Secretariat Commentary.
This match-up indicates that the order of the paragraphs of article
3 was reversed -- paragraph (1) of the 1978 Draft became
paragraph (2) of CISG article 3, and paragraph (2) of the
1978 Draft became paragraph (1). Other than that, 1978 Draft
article 3 and CISG article 3 are essentially the same.
Text of Secretariat Commentary on article 3 of the 1978 Draft
[draft counterpart of CISG article 3] [Contracts for services or for goods to be manufactured]
PRIOR UNIFORM LAW
ULIS, article 6. ULF, article 1(7). Prescription Convention, article 6.
1. Article 3 [draft counterpart of CISG article 3] deals with two different situations in which the contract includes some act in addition to the supply of goods.
Supply of materials by the buyer, paragraph (2) [paragraph (1)]
4. The opening phrase of paragraph (2) [paragraph (1)] of this article provides that the sale of goods to be manufactured or produced by the seller to the buyer's order is as much subject to the provisions of this Convention as the sale of ready-made goods.
5. However, the concluding phrase in this paragraph "unless the party who orders the goods undertakes to supply a substantial part of the materials necessary for such manufacture or production," is designed to exclude from the scope of this Convention those contracts under which the buyer undertakes to supply the seller (the manufacturer) with a substantial part of the necessary materials from which the goods are to be manufactured or produced. Since such contracts are more akin to contracts for the supply of services or labour than to contracts for sale of goods, they are excluded from the scope of this Convention, in line with the basic rule of paragraph (1) [paragraph (2)].
Sale of goods and supply of labour or other services by the seller, paragraph (1) [paragraph (2)]
2. This paragraph deals with contracts under which the seller undertakes to supply labour or other services in addition to selling goods. An example of such a contract is where the seller agrees to sell machinery and undertakes to set it up in a plant in working condition or to supervise its installation. In such cases, paragraph (1) [paragraph (2)] provides that if the "preponderant part" of the obligation of the seller consists in the supply of labour or other services, the contract is not subject to the provisions of this Convention.
3. It is important to note that this paragraph does not attempt to determine whether obligations created by one instrument or transaction comprise essentially one or two contracts. Thus, the question whether the seller's obligations relating to the sale of goods and those relating to the supply of labour or other services can be considered as two separate contracts (under what is sometimes called the doctrine of "severability" of contracts), will be resolved in accordance with the applicable national law (OFFICIAL RECORDS, p. 16).